Federal lawmakers should consider resolving right-of-way (ROW) disputes involving tribal lands through specific legislation rather than through "broader changes that would affect tribal sovereignty or self-determination generally," the U.S. Energy and Interior departments said in a recent report to Congress.

At least one industry group, the lobbying organization Fair Access to Energy Coalition, is taking issue with the departments' "case-by-case approach" to resolving ROW disputes.

The departments have submitted to Congress the Energy Policy Act of 2005 (EPAct) Section 1813 Indian Land Rights-of-Way Study, which is the culmination of a study mandated by EPAct to analyze compensation paid for ROW, tribal sovereignty interests and national energy transportation policies. Energy and Interior held two nationwide public meetings in March and April last year to gather comments on the scope of the study. It was ultimately narrowed to focus on issues related to electric and natural gas transmission and distribution lines, the most popular areas of concern.

Among the themes that emerged during the public discussions:

In their report, Energy and Interior said the negotiation processes for establishing or renewing ROWs on tribal land could benefit from improved collaboration. They recommended developing ROW inventories for tribal lands, standard business practices for energy ROW transactions and broadening the scope of energy ROW negotiations.

They recommended that valuation of ROWs on tribal lands should continue to be based on terms negotiated by the relevant parties. However, "if failure in the negotiations over the grant, expansion, or renewal of an energy ROW has a significant regional or national effect on the supply, price or reliability of energy resources, the Departments recommend that Congress consider resolving such a situation through specific legislation rather than making broader changes that would affect tribal sovereignty or self-determination generally."

Fair Access said it was hoping for something more cut and dried, particularly considering rising energy costs, which in some cases are partly driven by higher costs to obtain ROWs.

"With 90% of the current rights-of-way over tribal lands due for renewal in the next few years, recommending a case-by-case approach to solving significant impasses is short sighted, impractical and returns to a model that was wisely abandoned by Congress in the nineteenth century," said Fair Access Executive Director Nancy Ives. "Congress should fully consider these issues before they worsen with time and significantly adversely impact our nation's energy infrastructure."

More information about Section 1813 of EPAct, including the report to Congress, is available on a Energy and Interior's dedicated website, http://1813.anl.gov/index.cfm.

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